Opinion
Civil Action No. 00-3043.
October 29, 2001.
ORDER AND REASONS
Before the Court is Defendant's Motion for Reconsideration of this Court's Order and Reasons dated October 16, 2001 which denied Defendant's Motion for Summary Judgment. In particular, Defendant seeks reconsideration of its motion on two grounds: (1) the Court was in error in holding that the under Louisiana law an employer owes a duty of reasonable care to its independent contractor and (2) the Court was in error in not dismissing the claim of Cathy Kirklin on the grounds of lack of subject matter jurisdiction. For reasons set forth below, Defendant's Motion to Reconsider is GRANTED in part and DENIED in part.
I. Background
Plaintiff Stanley Kirklin was a contract mail carrier with the U.S. Postal Service. On October 13, 1997 he bid on a Highway Contract Route 70334 and was awarded the contract for a period beginning January 2, 1998 and ending June 30, 2001. The contract required plaintiff to carry all mail tendered for transportation as well as loading and unloading of the mail. The contract further required that plaintiff provide his own vehicle and pay his operational costs, including ordinary repairs and maintenance of equipment furnished by him, fuel, insurance, and general overhead costs. It is conceded by both pates that plaintiff was an independent contractor for the U.S. Postal Service and not an employee.
Plaintiff alleges that on October 15, 1999, as he was transferring mail to and from his truck while parked at the Houma Post Office loading dock, he was required to lift and move a 140 pound steel ramp from the dock to the base of his truck in the course of which he experienced a sharp pain in his neck and back. The ramp was owned by the U.S. Postal Service and made available to mail carriers for use in transferring mail to and from their vehicles while parked at the Post Office loading dock. It is disputed whether plaintiff was warned by U.S. Postal Service personnel not to lift the steel ramp by himself as well as whether plaintiff requested assistance in lifting the ramp.
Plaintiff and his wife seek damages on the grounds that the U.S. Postal Service was negligent in failing to provide him with one of the lighter, aluminum ramps available for use in transferring mail at the Houma Post Office loading dock. Plaintiff further claims that the U.S. Postal Service was negligent in requiring plaintiff to lift the ramp without assistance.
On August 8, 2001, Defendant moved this Court to dismiss the claims of Stanley Kirklin and his wife on the grounds that under Louisiana law an employer does not owe a duty of care to its independent contractor to guard against injuries sustained in the course of the contract's performance, and, further, that if there was negligence on the part of defendant, that such could not be considered the legal cause of plaintiff's injury. Defendant additionally sought dismissal of Cathy Kirklin's loss of consortium claim on the grounds that this Court lacked subject matter jurisdiction to hear the claim.
II. Discussion
The Federal Rules of Civil Procedure do not recognize a "motion for reconsideration" in those exact terms. See Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990). However, the Fifth Circuit has held that a motion to reconsider a pre-trial motion is analogous to a motion to "alter or amend the judgment" under Federal Rule of Civil Procedure 59(e) or a motion for "relief from judgment" under Rule 60(b). See id.
In Washington v. CSC Credit Services, Inc., 180 F.R.D. 309 (E.D. La. 1998), rev'd and vacated on other grounds, 199 F.3d 263 (5th Cir. 2000), this Court ruled that alteration or amendment of a previous ruling under Federal Rule of Civil Procedure 59(e) is proper only upon movant's showing of: "(1) an intervening change of controlling law; (2) the availability of new evidence; and/or (3) the need to correct a clear and manifest error of fact or law." 180 F.R.D. at 311.
First, as to this Court's determination that the United States Postal Service owes a duty to exercise reasonable care to its independent contractors under Louisiana law, Defendant fails to demonstrate a manifest error of law. Defendant simply disagrees with this Court's refusal to extend the immunity enjoyed by employers from claims of damage suffered by third pates resulting from the tortious acts of an independent contractor to the situation in this case, one in which the independent contractor seeks damages for his own injuries allegedly caused by the employer's direct negligence.
Second, as to the issue of whether the claim of Cathy Kirklin should be dismissed for lack of subject matter jurisdiction, the Court will consider this claim because discussion of this issue was omitted from the Order and Reasons dated October 16, 2001.
In its Motion for Summary Judgment, Defendant moves this Court for dismissal of the claim of Stanley Kirklin's wife, Cathy Kirklin, for failure to exhaust her administrative remedies in that she did not file an administrative claim with the U.S. Postal Service prior to her joining in the lawsuit brought by her husband.
The Federal Torts Claim Act ("FTCA") requires each individual seeking damages to present his or her claim to the appropriate administrative agency. 28 U.S.C. § 2675(a). The "exhaustion of administrative review is a jurisdictional requisite to suit under the [FTCA]." McAfee v. 5th Circuit Judges, 884 F.2d 221, 222-23 (5th Cir. 1989). The fact that the claimant brings a derivative claim for loss of consortium does not excuse her from this jurisdictional requirement. See Fuller v. Hillyard, 2001 WL 6725 (E.D. La.). Thus, this Court lacks subject matter jurisdiction over the loss of consortium claim of Cathy Kirklin.
III. Conclusion
For reasons set forth above, the Defendant's Motion to Reconsider is Granted in Part and DENIED in part. Further, for reasons set forth above, the claim of Cathy Kirklin for loss of consortium is DISMISSED without prejudice for lack of subject matter jurisdiction.